dismissed EB-1C Case: Carpet Services

PUBLIC COPY 
identifying data deleted to 
prevent clear1 y uriwmanted 
invasion of personal privacy 
U.S. Department of EJnmeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: VERMONT SERVICE CENTER 
EAC 04 267 52398 
 Date: AUG 3 1 2007 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
A& 
$ Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the employment-based petition. 
 The 
petitioner filed a timely appeal of the director's denial, which the Administrative Appeals Office (AAO) 
remanded to the director for further action and consideration. The director again denied the immigrant visa 
petition, and the AAO dismissed the petitioner's subsequent appeal. The matter is again before the AAO on 
motion to reconsider. The AAO will grant the motion. The prior decisions of the director and the AAO will 
be affirmed. 
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New York that is 
engaged in repairing, remodeling, mending, and cleaning carpets. It seeks to employ the beneficiary as its 
general manager. 
In a January 7, 2005 decision, the director denied the petition concluding that the petitioner had not 
established that the beneficiary had been or would be employed by the foreign or United States entities in a 
primarily managerial or executive capacity. Upon review of the petitioner's appeal, the AAO remanded the 
matter to the director, noting that the director had not issued a request for evidence, thereby failing to provide 
the petitioner an opportunity within which to address the deficiencies in the record. 
Following the petitioner's response to his request for evidence, the director again denied the petition 
concluding that the petitioner had not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
The AAO dismissed the petitioner's subsequent appeal, affirming the director's finding that the petitioner had 
not demonstrated that the beneficiary would be employed by the United States entity as a manager or 
executive. Specifically, the AAO addressed the vague representations offered by the petitioner of the 
beneficiary's employment in a primarily managerial or executive capacity. The AAO emphasized the 
relevance of detailing the specific job duties performed by the beneficiary on a daily basis, noting that several 
of the beneficiary's job responsibilities suggested his performance of non-managerial and non-executive tasks. 
The AAO further noted that the petitioner's staff did not appear to be sufficient to satisfjr the company's 
reasonable needs, particularly those related to its marketing, advertising, administrative, and financial 
functions. 
Counsel for the petitioner filed this timely motion to reconsider challenging the AAO's review of the record of 
proceeding, and its analysis and interpretation of the beneficiary's job duties. Counsel submits a brief and 
documentary evidence in support of the motion. 
The regulation at 8 C.F.R. 8 103,5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
The regulation at 8 C.F.R. 3 103.5(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [Citizenship and Immigration Services (CIS)] policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or hnction for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In support of the instant motion, filed on January 11,2007, counsel for the petitioner submits a brief in which 
she challenges the AAO's findings on several grounds. Counsel first contends that the AAO "quote[d] only a 
portion of a whole section wherein the petitioner articulated how certain duties performed by the beneficiary 
meet each and every component of both definitions of 'managerial capacity' and/or 'executive capacity'." In 
support of the argument that the petitioner had demonstrated the beneficiary's eligibility under either 
classification as a manager or as an executive, counsel restates several of the job responsibilities named in the 
previously submitted job descriptions. 
Contrary to counsel's claim, in its December 13, 2006 decision, the AAO cited the offered job descriptions in 
their entirety. The AAO's reference to only portions of the job descriptions in its actual discussion of the 
beneficiary's employment capacity does not demonstrate that the AAO did not consider the entire job 
descriptions in its analysis, as suggested by counsel. 
With respect to the beneficiary's job duties, counsel emphasizes "four essential management functions" 
performed by the beneficiary - planning, organizing, leading, and controlling - and provides a lengthy 
description of the beneficiary's role in executing each "process." The AAO notes that in the record of 
proceeding available to the AAO at the time of its review, the petitioner mentioned three of the four job 
responsibilities - planning, organizing, and controlling - in the context of "planning, organizing, budgeting, 
directing, controlling, and coordinating the overall activities of operations of our organization . . . ." 
(emphasis added). The petitioner further noted that the beneficiary would be in charge of "planning" the 
operational activities of the company, controlling the hiring and firing of employees, and "developing long 
Page 5 
range goals and objectives." The petitioner, however, did not previously expound on the tasks associated with 
these responsibilities, or identify each of these responsibilities as an "essential managerial function," or 
address how the beneficiary's purported "planning," "organizing," or "controlling" would qualify him as a 
manager or executive. 
The instant motion to reconsider is not the proper forum in which to provide new details of the beneficiary's 
proposed employment. A motion to reconsider contests the correctness of the original decision based on the 
previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new or 
previously unavailable evidence. Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006) (citing Matter of Cerna, 20 
I&N Dec. 399, 402 n.2 (BIA 1991). Moreover, a motion to reconsider cannot be used to raise a legal 
argument that could have been raised earlier in the proceedings. Rather, the Board in Matter of O-S-G- 
stated, the "additional legal arguments" that may be raised in a motion to reconsider should flow from new 
law or a de novo legal determination reached by the Board in its decision that may not have been addressed 
by the parties. Id. at 58. Further, the Board pointed out, a motion to reconsider is not a process by which a 
party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally 
alleging error in the prior Board decision. Instead, the moving party must specify the factual and legal issues 
raised on appeal that were decided in error or overlooked in the Board's initial decision or must show how a 
change in law materially affects the Board's prior decision. 
Counsel also challenges the requirement imposed on the petitioner by the AAO to describe the managerial or 
executive job duties performed by the beneficiary on a daily basis. Counsel contends that the regulation at 8 
C.F.R. 5 204.56)(5) requires only that the petitioner submit a letter clearly describing the duties to be 
performed by the beneficiary, but that the petitioner need not identify daily job duties. Counsel correctly 
observes that the cited regulation does not specifically stipulate a description of daily job duties to be 
performed by the beneficiary. However, a review of the regulation at 8 C.F.R. tj 204.5(j)(5) in conjunction 
with relevant case law substantiates the AAO's request for an outline of proposed daily managerial or 
executive job duties. The court in Fedin BPOS. CO., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990) found that the absence of a description "of how, when, where and with 
whom [the alleged managerial or executive] duties occurred" or the failure to mention "specific situations, 
circumstances or occurrences" would fall short of establishing the beneficiary's employment in a primarily 
managerial or executive capacity. The court further stated: "The actual duties themselves reveal the true 
nature of employment." Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Similarly, in determining that a 
beneficiary would not occupy a primarily managerial or executive position, the court in Niagara Handpiece, 
Ltd. v. USCIS, 2006 WL 2792292 (W.D.N.Y.), considered "the day-to-day nonqualifying activities" 
performed by the beneficiary. See also, Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991) (considering, in part, the "day-to-day functions" performed by the beneficiary 
when determining whether the beneficiary would be employed in a primarily managerial or executive 
capacity). Accordingly, the AAO did not err in its request for a description of daily managerial or executive 
job duties to be performed by the beneficiary in his employment as general manager. 
Counsel further claims that the AAO erred in its determination that the beneficiary would perform non- 
qualifying tasks of the petitioner's business, rather than acknowledging the beneficiary's role as a function 
manager in the company. Specifically, counsel references the AAO's finding that the beneficiary's 
responsibilities of promoting the company, developing new markets, determining operating budgets, or 
handling customer complaints more closely resemble non-qualifying operational tasks related to the 
Page 6 
company's marketing, sales, and advertising functions, rather than managerial or executive tasks, as suggested 
by the petitioner. In dispute of the AAO's finding, counsel states on motion: 
In the first place, the petitioner never claimed that the beneficiary actually performs the 
task(s) of promotion, marketing, sales, or advertising of the company. The petitioner 
merely stated that the beneficiary is responsible for 'planning, developing, and establishing 
advertising, marketing and promotion of our services, to develop new markets, increase 
share of market, and obtain competitive position in the industry,' which is 'an essential 
function' in order for the company to expand its business and remain profitable, and which 
fact is further supported by the [Occupational Outlook Handbook (OOH)] acknowledging 
marketing as an essentialbnction, stating that 'the fundamental objective of any firm is to 
market its services profitably' (copy on file). The AAO has long acknowledged the role of 
a 'functional' manager in small organizations. Matter of Vaillancourt, 13 I&N Dec. 654 
(R.C. 1970), and Matter of Borris, 13 I&N Dec. 601 (Reg. Comm'r 1970). 
The AAO abused its discretion when it stated that '[blased on the petitioner's claims, the 
beneficiary would manage the previously noted tasks; yet the petitioner has not identified a 
subordinate staff that would develop and implement the company's marketing, advertising, 
and promotional programs' - once again, there is absolutely no claim on the part of the 
petitioner stating that the beneficiary would 'manage' the company's marketing, advertising, 
and promotional programs; the petitioner stated that the beneficiary is responsible for 
'planning, developing, and establishing advertising, marketing and promotion of our 
services,' which is an essential function - in order for the company to market its services 
profitably, develop new markets, increase share of market, and obtain competitive position 
in the industry. 
(Emphasis in original). 
The record demonstrates that the AAO properly considered the beneficiary's eligibility for classification as a 
function manager. At the time of the appeal, counsel merely alleged that the beneficiary should be considered 
a function manager because he is "managing the overall activities of operations relating to the [petitioner's 
repairs, remodeling, mending, and cleaning of carpets], ensuring optimum efficiency and economy of 
operations and maximizing profits . . . [and] planning, developing, and establishing advertising, marketing 
and promotion of our services, to develop new markets, increase share of market, and obtain competitive 
position in the industry. . . ." Based on counsel's vague claim, the AAO's finding that petitioner failed to 
identify a specific function to be managed by the beneficiary is reasonable. The concept of function manager 
requires the petitioner to furnish a written job offer that clearly describes the duties to be performed, i.e. 
identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 
9 204.56)(5). The record as constituted at the time of the AAO's review does not satisfy this requirement of 
specificity. 
Counsel's claims on motion are not sufficient to overcome the AAO's analysis of whether the petitioner 
established the beneficiary's eligibility as a function manager. As clarification, the AAO first addresses 
Page 7 
counsel's argument that petitioner did not represent the beneficiary as managing the company's marketing, 
advertising, and promotional programs, but instead stated that he would plan, develop and establish these 
services, which counsel alleges is an essential function. Counsel appears to be claiming that prior to the 
instant motion the petitioner did not explicitly represent the beneficiary as a function manager. Yet, counsel's 
earlier representations on appeal that the "marketing [i]s an essential function" and that the management of 
the company's overall operations is an essential function implies the role of a function manager. The statutory 
definition of "managerial capacity" addresses the relevance of the term "essential function" when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible 
for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 
U.S.C. $ 1101(a)(44)(A)(ii). Under the claim of function manager, the beneficiary would purportedly 
manage an essential function of the company. 
Nonetheless, even if an activity or component is deemed to be an essential function of the business, the 
petitioner must still demonstrate that the beneficiary would primarily manage the particular function rather 
than primarily perform the duties related to the function. The AAO was correct in concluding that the record 
suggested that the beneficiary would primarily perform non-qualifying tasks of the "essential functions" 
identified by counsel, most notably the marketing, advertising, and promotional programs, as well as sales, 
advertising, administrative, and customer service functions. In making this determination, the AAO noted the 
petitioner's failure to identify a subordinate staff that would perform any of the non-managerial and non- 
executive tasks associated with the above-listed functions, and thus a lack of evidence in the record to 
establish that the beneficiary would be relieved from personally performing these tasks. See Q Data 
Consulting, hc. v. INS, 293 F.Supp.2d. 25, 29 (D.D.C. 2003) (holding that the INS' finding that the 
beneficiary did not work in a primarily managerial or executive capacity was "bolstered by the absence of 
evidence that a sufficient 'subordinate staff will 'relieve her from performing managerial nonqualieing 
duties' "). The AAO recognized that the beneficiary's marketing and advertising responsibilities would 
occupy 35 percent of the beneficiary's time, but noted that the petitioner had not accounted for the additional 
time the beneficiary would presumably spend performing such the administrative tasks related to personnel 
matters, and bookkeeping, banking, and accounting functions. 
In opposition to the AAO's finding, counsel states on motion that the beneficiary "does not perform the 
marketing, advertising, and promotions of the company," and explains that the beneficiary instead "decided to 
outsource marketing, advertising, promotions, and accounting, in order to cut expenses." Counsel references 
the beneficiary's role as a liaison between the petitioning entity and the claimed advertising and promotion 
agencies. The AAO notes that in its September 16, 2005 decision, in which the matter was remanded to the 
director for the issuance of a request for evidence, the petitioner was notified of a deficiency in the record that 
undermined its claim of employing the beneficiary as a function manager. Specifically, the AAO rejected 
counsel's claim that the beneficiary's responsibilities of "planning, developing, formulating and managing 
advertising, marketing, and promotion of [the petitioner's] services to develop new markets, increase share of 
market, and obtain competitive position in industry" constituted the management of an essential function. 
The AAO concluded that the job description was more indicative of one who would perform "routine 
operational tasks associated with advertising, marketing, and promoting the petitioner's services." 
Nonetheless, despite the comments made by the AAO in its earlier decision, no suggestion was made by the 
petitioner, either in response to the director's request for evidence or on appeal, of utilizing outside agencies 
for its marketing, advertising and promotions. 
Page 8 
In the present motion, counsel contends for the first time the petitioner's use of outside agencies to perform 
tasks originally determined by the AAO to have been the responsibility of the beneficiary. Counsel, however, 
neglects to submit any documentary evidence, such as copies of payments made by the petitioner or invoices 
for services rendered to the petitioning entity supporting this claim. Moreover, the petitioner's federal income 
tax return for 2004, the year during which the Form 1-140 was filed, undermines counsel's claim that the 
petitioner contracted for outside services, as there is no evidence of payments made for accounting, 
marketing, or promotional services. In fact, the only deductions listed by the petitioner on its 2004 income 
tax return are for expenses related to its automobiles, insurance, bank fees, office, and utilities. Absent 
relevant documentary evidence, such as the documents noted above, counsel's claim that the beneficiary 
would not personally perform the above-named non-managerial and non-executive tasks remains 
unsubstantiated. Accordingly, based on the record available at the time of the AAO's review, the AAO 
properly rejected the beneficiary's purported role as a function manager. Furthermore, the record does not 
support counsel's claim that the AAO's finding was an abuse of its discretion. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Counsel further alleges that the AAO incorrectly categorized the beneficiary's responsibilities of handling 
customer complaints and "overseeing the organization, scheduling, and implementation of projects" as non- 
managerial or non-executive. Counsel contends that it is common in small corporations for the general 
manager to handle customer complaints, as "the success of the company depends on customers' satisfaction," 
which incorporates "[alssessing customer needs, [and] meeting quality standards for services offered by the 
company." Counsel also states: 
Since the beneficiary retains the ultimate responsibility for the financial success of the 
company, then judgment and decision making related to the services provided by the 
company; overseeing budgets and ensuring that resources are used properly and that 
programs are carried out as planned, directing and coordinating the activities of the 
company; managing daily operations and overseeing the use of materials and human 
resource; overseeing activities directly related to services provided by the company are 
being carried out efficiently and effectively, and stay within budget in order to maximize 
the company's profits; considering the relative costs and benefits of potential actions to 
choose the most appropriate one; management of personnel resources, determining staffing 
requirements, identifying the best people for the job; staff and time management, 
developing constructive and cooperative working relationships and maintaining them over 
time; monitoring and assessing performance of subordinates to make improvements or take 
corrective action, are all managerial responsibilities. 
Counsel's assertions as to the managerial nature of the above-named job duties are not persuasive. The AAO 
recognizes that the success of a business is based on customer satisfaction. However, regardless of the 
"small" or large size of a corporation, the beneficiary's role in personally performing the petitioner's customer 
services function, which, according to the petitioner includes handling customer complaints, obtaining and 
evaluating information from customers, employees, and third parties, "resolving conflicts and negotiating 
with others," and "sett[l]ing disputes" are not typically deemed to be managerial or executive in nature. See 
$9 101(a)(44)(A) and (B) of the Act. Similarly, contrary to counsel's claim, the beneficiary cannot be deemed 
Page 9 
to be "overseeing" such functions as the scheduling and implementation of projects. As the petitioner has not 
identified any subordinate workers who would be responsible for scheduling the company's appointments and 
projects, there is insufficient evidence documenting the beneficiary's purported responsibility of "overseeing 
the organization, scheduling, and implementation of projects." As noted previously, the absence of a 
subordinate staff sufficient to perform the non-qualifying duties of the petitioner's business is a proper 
consideration in the analysis of the beneficiary's employment capacity. See Q Data Consulting, Inc. v. INS, 
293 F.Supp.2d. 25,29 (D.D.C. 2003) 
Counsel also contends that because the beneficiary supervises and controls the work of supervisory, 
professional, and managerial employees, he qualifies as a manager under section 101(a)(44)(A) of the Act. 
Counsel challenges that under the cited statute, the petitioner is required to demonstrate only that the 
beneficiary supervises a manager, or a supervisor, or a professional, and states that the beneficiary's 
classification as a manager is established by the sole fact that he is supervising a subordinate carpetlrug 
supervisor, who is employed in a supervisory position. In its December 13,2006 decision, the AAO did not 
contest the supervisory role of the ruglcarpet cleaning supervisor, but found insufficient evidence 
demonstrating that the beneficiary's other two subordinates - a warehouse manager and a color expert - were 
in fact employed as a manager or professional, respectively, as alleged by the petitioner. Nonetheless, the 
beneficiary's purported supervision and control of supervisory, professional or managerial employees does 
not, by itself, establish his employment in a primarily managerial capacity. This requirement is but one of 
four criteria outlined in the statutory definition of "managerial capacity," which requires a showing that the 
beneficiary would satisfy each of the four high-level responsibilities. Similarly, if the petitioner had 
demonstrated that the beneficiary would manage an essential function of the organization, this factor alone 
would not have satisfied the statutory definition of "managerial capacity." 
Lastly, counsel maintains that CIS' previous approvals of two L-1A nonimmigrant petitions filed by the 
petitioner on behalf of the beneficiary "should be a relevant consideration in adjudicating the immigrant 
petition to classify the beneficiary as a manager or executive," particularly since the original L-IA 
nonimmigrant petition involved the opening of a new United States office, the extension of which, counsel 
notes, requires the petitioner to submit "specific, additional supporting evidence" of the beneficiary's 
proposed employment as a manager or executive. Counsel references the AAO's comment in its December 
13, 2006 decision that "unless a petition seeks extension of a 'new office' petition, the regulations allow for 
the approval of an L-1 extension without any supporting evidence and CIS normally accords the petitions a 
less substantial review." Counsel contends that because the prior approvals required additional documentary 
evidence of the beneficiary's proposed employment, it is logical that USCIS would apply "a more substantial 
review" to the beneficiary's two nonimmigrant petitions. 
As noted in its earlier decision, the AAO again instructs that each nonimmigrant and immigrant petition is a 
separate record of proceeding with a separate burden of proof. See 8 C.F.R. 3 103.8(d). Despite the approval 
of two L-1A nonimmigrant visa petitions authorizing the beneficiary's employment as the general manager of 
the petitioning entity, each petition must stand on its own individual merits. In making a determination of 
statutory eligibility, CIS is limited to the information contained in that individual record of proceeding. See 8 
C.F.R. 8 103.2(b)(16)(ii). The AAO notes that the earlier nonimmigrant petitions are not part of the instant 
record of proceeding. Nonetheless, the approval of a nonimmigrant petition in no way guarantees that CIS 
will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 petitions 
after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
 I 
Page 10 
Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ld v. Sava, 724 F. 
Supp. at 1 103. 
While the statutory definitions for managerial and executive capacity are the same for the immigrant and 
nonimmigrant classifications, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. See $9 10 1 (a)(44)(A) and (B) of the 
Act. There are significant differences between the nonimmigrant visa classification, which allows an alien to 
enter the United States temporarily for no more than seven years, and an immigrant visa petition, which 
permits an alien to apply for permanent residence in the United States and, if granted, ultimately apply for 
naturalization as a United States citizen. Cf: $9 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 
5 316 ofthe Act, 8 U.S.C. 5 1427. 
Counsel's suggestion that USCIS likely applied a more strict analysis to its review of the "new office" visa 
petition and the petition involving the extension of the new office does not take into account the fact that 
some nonimmigrant L-I petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d 25 (D.D.C. 2003). If the previous nonimmigrant petitions were approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that 
CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
by the United States entity in a primarily managerial or executive capacity. Accordingly, the previous 
decisions of the director and AAO are affirmed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has not been met. Accordingly, the 
previous decisions of the director and the AAO will be affirmed and the petition will be denied. 
ORDER: The AAO's December 13,2006 decision is affirmed.